CHER PHILLIPS

Gathering InformationChapter 9

Sources for Legal Right of Access

Common LawConstitutional LawStatutory Law

Common Law

Precedents open certain public records but limited to:

- Person must have an interest - Interest is often limited to litigants - Limit can be to records what is required to be kept – common law doesn’t require that much to be kept

Constitution and News Gathering

First Amendment was seen as a way to confront the government, not necessarily report on it

Three cases asked the high court if journalists had an unobstructed right to gather news in a prison – they said no all three times.

Access to Government Officials:

Does a public official have to talk to a reporter?

Three cases Baltimore Sun v Erlich +Youngstown Publishing Co. v McKelvey +Citicasters Co. v Finkbeiner =Public officials can refuse interview access

and comment to individual reporters, but cannot ban them from public press conferences.

Trespass

Intentional, unauthorized entry into land that is occupied or possessed by another

Daniel Lovelace – fined $300 for walking into a yard

What if a government official invites the reporter onto someone else’s land?

Wilson v Layne, Hanlon v Berger

Harassment

Inside Edition and the Wolfsons Daughter and son-in-law of Leonard

Abramson – subject of storyInside Edition aggressively followed family

aroundResolved without trial

Fraud

Knowingly false statement of a material or significant fact that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff’s harm or injury.

In other words, Can a reporter give a false name and fake work history to get a job to cover a story undercover?

The FoodLion storyJournalist Avi Lidgi posed as a federal prosecutor

and a federal judge’s aide to get secret documents.

Failure to Obey Lawful Orders

Journalists can face charges of disorderly conduct or worse if they don’t respect crime-tape boundaries at scene

Goes both ways… David Connell and the second story window

Tape and Recording

38 states have one-party consent for taping A dozen states require all partiesInterstate conversations make it more

complicatedBest to get consent for allCan we tape?

http://www.rcfp.org/taping/index.html

Freedom of Information Act

1966 Congress passed FOIA

http://www.youtube.com/watch?v=X3CtKpXrE1A

Applying the Law

Its usefulness is determinant on how the government interprets and applies it

In 2001 Attorney General John Ashcroft orders all agencies to review more closely what they release

Bush admin limited public access to information about critical infrastructure – 2002 Homeland Security Act severely weakened the FOIA

FOIA and Electronic Communication

Initial feelings in government were that electronic records were outside FOIA; extended to high officials

Clinton admin fought NSA about saving emailBush admin sought to erase all communication

records among officials during Reagan admin1993 US court of appeals rejected argument

that government should be able to toss information as they saw fit, 1996 Congress amended FOIA to include electronic info

FOIA

http://www.youtube.com/watch?v=uHrW8IPwFIg&feature=related

Agency Records

Two ways to draft open record lawFirst is open-ended and says that all records

are open except for certain exemptionsSecond is to list the kinds of records that are

openThe first is stronger for two reasons

Interpretation The number of agencies:

http://www.justice.gov/oip/other_age.htm

Agency & Records

Agency - The FOIA gives any person access to all records kept by all federal agencies, unless it falls into 9 categories of exemption

Records – physical characteristics are not specified but paper, email, computer-generated material, films, tapes, three dimensional objects

Agency Record

What is an agency record? Not necessarily what you think

Record is either created or obtained by an agency and the record is under agency control at the time of the FOIA request, it is likely an agency record

If the agency possesses the document but didn’t create it, then might not be an agency record. If the agency came into possession of the record as part of its official duties, then it is probably a record. If the agency just happens to have it, it is not an agency record.

Nine FOIA exemptions

1. National Security matters 2. Housekeeping Materials3. Material exempted by statute4. Trade Secrets5. Working papers/lawyer – client privileged

materials6. Personal Privacy files

Exemptions cont.

7. Law enforcement records8. Financial institution materials9. Geological data

FOIA Requests

HOW TO MAKE REQUEST http://www.youtube.com/watch?v=X3CtKpXrE1A

Letter Generator: http://www.rcfp.org/foialetter/index.php

Government in the Sunshine Act

1976 – Congress passed Government in Sunshine Act or the federal open-meetings law

“headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president with the advice and consent of the Senate.”

Courts have strictly interpreted this to mean bodies whose members are appointed by president

State Laws on Meetings and Records

These are the statutes that govern which records and which meetings are open and provide a remedy for citizen denied access.

They provide rules for notice and how records of meetings should be kept.

Open record laws – Sunshine laws – govern the inspection of records.